Desi Talk - page 20

20
May 6, 2016
Bhatia Law Firm, LLP
Prashant Bhatia, Esq. Attorney at Law
Seton Hall University Law Graduate
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Princeton Office
475 Wall Street,
Princeton NJ 08540
Ph: 609-831-2889
Edison Office
1404 Oak Tree Rd, Suite 212
Iselin, NJ 08830
Ph: 732-444-4518
Jersey City Office
549 Summit Ave,
Jersey City NJ 07306
Ph: 201-606-2208
New York Office
112 W, 34 St
New York N Y
Ph: 212-203-6890
We speak English, Hindi, Punjabi, Marathi,Gujarati, Sindhi & Urdu
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OTHER FIRM ATTORNEYS ADMITTED IN NY, NJ, D.C& CALIFORNIA
VOLUME DISCOUNTS ON BULK H1-B FILINGS
Visit us at:
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IMMIGRATION
By:
Michael Phulwani, Esq.,
David H. Nachman, Esq.
and
Rabindra K. Singh, Esq.
NOW THAT THE CAP IS REACHED . . .
DO I STILL HAVE A CHANCE OF GET-
TING AN H-1B VISA?
O
n April 7, 2016, U.S. Citizenship
and Immigration Services
(USCIS) announced that it has
reached the congressionally mandated
H1B cap for fiscal year (FY) 2017. USCIS
also received more than the limit of
20,000 H1B petitions filed under the U.S.
advanced degree exemption. Because of
the surge of petitions that were filed,
USCIS conducted a lottery to determine
which petitions received during the five­
day submission period will actually be
considered. USCIS has already started
sending receipt notices for the petitions
selected in the random selection process.
As expected, it is a very stressful time for
thousands of potential H1B workers.
Until the prospective H1B employers or
their legal representatives start receiving
receipt notices, and the dark clouds of
uncertainty over prospective H1B visa
holders move past, the question worth
asking and exploring is: “Do I still have a
chance of getting an H1B visa even if my
H1B petition does not make it to the H­
1B cap?”
Unfortunately, the regular (bachelor’s)
H1B cap remains at 58,200
1
and the
master’s cap cannot accommodate more
than 20,000 specialty occupation work­
ers. However, there are certain categories
of capexempt H1B visas. One such cate­
gory is for beneficiaries of employment
offers at: (1) institutions of higher educa­
tion or related or affiliated nonprofit en­
tities; or (2) nonprofit research
organizations or governmental research
organizations. Thus, to get a capexempt
H1B visa using this category the funda­
mental question to ask is: whether the
offer of employment is from an institu­
tion of higher education, or related or af­
filiated nonprofit entities, or from
nonprofit research organization or gov­
ernmental research organization.
For the purposes of H1B cap exemption,
the H1B regulations have adopted the
definition of institution of higher educa­
tion set forth in section 101(a) of the
Higher Education Act of 1965. To be clas­
sified as an institution of higher educa­
tion, the educational institution must
satisfy five (5) requirements. First, the
educational institute must be a public or
other nonprofit institution. Second, the
master’s degree issuing institution must
be accredited by a nationally recognized
accrediting agency or association.
Moreover, the educational institution
must satisfy all of the following three re­
quirements: (1) admits as regular student
only persons having a certificate of grad­
uation from a school providing second­
ary education, or the recognized
equivalent of such a certificate; (2) is
legally authorized within such state to
provide a program of education beyond
secondary education; and (3) provides an
educational program for which the insti­
tution awards a bachelor’s degree or pro­
vides not less than a 2year program that
is acceptable for full credit toward such a
degree. The previous article in this series
discussed in detail which educational in­
stitutions may or may not qualify as an
institution of higher education.
Assuming that the academic institution
will qualify as an institution of higher
education, the next two questions that
have perplexed immigration practition­
ers and potential H1B employers are: (1)
what is the difference between employed
“by” and employed “at”; and (2) how
does one determine if the nonprofit insti­
tution is “related to or affiliated with” an
institution of higher education.
The 2006 Aytes memo clarified the differ­
ence between employed “at” and em­
ployed “by’, and the purpose
2
behind it.
This memo explained that commonly,
qualifying institutions petition on behalf
of current or prospective H1B employ­
ees and claim this exemption. In certain
instances, petitioners that are not them­
selves a qualifying institution also claim
this exemption because the prospective
H1B beneficiary will perform all or a
portion of the job duties “at” a qualifying
institution. Such petitioners are referred
to as “third party petitioners.” Thus,
USCIS allows an exemption in situations
where the employee is employed by a
“third party petitioner” but the prospec­
tive H1B employee will perform job du­
ties at a qualifying institution that
directly and predominately furthers the
normal, primary, or essential purpose,
mission, objectives or function of the
qualifying institution, namely, higher ed­
ucation, or nonprofit research organiza­
tion, or governmental research
organization. Thus, if the petitioner is
not itself a qualifying institution, the bur­
den is on the petitioner to establish that
there is a “logical nexus” between the
work performed predominately by the
beneficiary and the normal, primary, or
essential work performed by the qualify­
ing institution.
In this context, the issue that has been
source of frequent litigation is: “How to
determine whether the nonprofit institu­
tion is “related to or affiliated with” the
institution of higher education?” The Ad­
ministrative Appeals Office (“AAO”) has
always deferred to the USCIS approach
as to whether the nonprofit institution is
related to or affiliated with the institu­
tion of higher education.
to be continued...
_________________
1
Up to 6,800 visas are set aside from the cap of 65,000 during each fiscal year for the H1B1
program designed specifically for the nationals of Chile and Singapore (1,400 visas for the na­
tionals of Chile, and 5,400 visas for the nationals of Singapore). The annual 6,800 H1B1 nu­
merical is counted against the H1B numerical cap.
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